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[2015] ZAFSHC 194
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S v Botha (135/2015(b)) [2015] ZAFSHC 194 (29 October 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Review No. : 135/2015(b)
In the
matter between:-
THE
STATE
and
HERMAN ABRAM BOTHA
CORAM:
VAN
ZYL, J
et
OPPERMAN,
AJ
JUDGMENT
BY:
OPPERMAN,
AJ
DELIVERED
ON:
29
OCTOBER 2015
JUDGMENT
[1]
The accused was convicted of the contravention of
section 57(1)
of
the
National
Environmental Management Biodiversity Act 10 of 2004
after proper application by the magistrate of
section 112(1)(b)
of
the
Criminal
Procedure Act 51 of 1977
.
[2]
The matter was referred for review in terms of
section 302
of the
Criminal
Procedure Act 51 of 1977
.
[3]
Reflected in the transcribed record as well as Annexure A of the
original record the following sentence
was imposed:
“
Beboet
met R250 000-00 (Twee honderd en vyftig duisend) of 1 (een) jaar
gevangenisstraf. Dit word gelas dat bogenoemde boetevonnis
en termyn
van gevangenisstraf in die geheel opgeskort word vir ‘n periode
van 5(vyf) jaar op die onderstaande voorwaarde.
Opskortingsvoorwaardes:
dat die beskuldigde nie skuldig bevind word aan die oortreding van
artikel 57(1) van die
National Environmental Management Biodiversity
Act 10 of 2004
. Uitvoer van ‘n beperkte handeling ten opsigte
van ‘n bedreigde, beskermde dier/spesie sonder voorgeskrewe
permit.”
[4]
Confusion was caused by an erroneous depiction of the sentence on the
so-called J4 or cover document
prescribed in the administration of
review cases. The flawed reproduction of the sentence reads:
“
Fined
with R250 000-00 (Two hundred and fifty thousand rands) or 1(one)
year imprisonment.
It
is ordered that such term of imprisonment
be wholly suspended for a period of 5(five) years on condition the
accused is not convicted of the Contravention of
section 57(1)
of the
National Environmental Management Biodiversity Act 10/04 –
performing
of a restricted activity involving threatened or protected
species without a permit.”
(My
accentuation)
[5]
The difference, material and relevant, caused Mokoena AJ to request
reasons from the magistrate on the
erroneous version of the sentence.
The magistrate, also not recognising the confusion, set about giving
comprehensive reasons for
sentence.
[6]
Section 303
of the
Criminal
Procedure Act 51 of 1977
explicitly prescribes: ‘a copy thereof certified by such
clerk’. It is apposite to caution that magistrates must ensure
the correctness of records and communication with superior courts at
all times. The typed record was not certified by the clerk
of the
court and the annexure to the charge sheet, for instance, reflects
the accused to be only Mr. Tobie Bird; this is not a
true reflection
of the original record and the transcript of the digital recordings.
[7]
The above said; I am satisfied that the proceedings in this case are
in accordance with justice. However
the formulation of the sentence
must be corrected.
[8]
The following order is consequently that:
1.
The
conviction and sentence are confirmed.
2.
The
formulation of the sentence is amended to read:
“
The
accused is fined to R250 000-00 (Two hundred and fifty thousand
rands) or 1(one) year imprisonment which is wholly suspended
for
5(five) years on condition the accused is not again convicted of the
contravention of
section 57(1)
of the
National
Environmental Management Biodiversity Act 10 of 2004
and
which was committed within the period of suspension
.”
_________________
M.
OPPERMAN, AJ
I concur.
______________
C.
VAN ZYL, J